Opinion
No. 1468.
March 3, 2011.
Judgment of resentence, Supreme Court, New York County (Gregory Carro, J.), rendered October 7, 2008, resentencing defendant to a term of 25 years to life with three years' post-release supervision (PRS), unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Claudia S. Trupp of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Richard Nahas of counsel), for respondent.
Before: Gonzalez, P.J., McGuire, Acosta and Román, JJ.
This case was one of the cases consolidated in People v Sparber ( 10 NY3d 457). The Court of Appeals directed "a resentencing hearing that will include the proper pronouncement of the relevant PRS term" ( id. at 473). Defendant argues that the resentencing court was obligated to reconsider the length of the original prison term, and requests that the case be remanded for another resentencing. This case presents the issue this Court found unnecessary to decide in People v Edwards ( 62 AD3d 467, 468, lv denied 12 NY3d 924), "whether a proceeding conducted for the purpose of compliance with Sparber is a plenary resentencing that permits the court to reconsider the length of the prison component of the sentence." We now conclude that such a resentencing only involves PRS, and is not an occasion to revisit the original prison sentence. According to Sparber, a court's failure to include PRS in its oral pronouncement of sentence "amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy" ( 10 NY3d at 472). Moreover, there was no legal error, whether procedural or substantive, in the imposition of the term of incarceration. The fact that the proceeding at issue was designated a resentencing does not necessarily imply that defendant was entitled to a completely de novo sentencing ( see e.g. People v Green, 62 AD3d 1024, 1026, lv denied 13 NY3d 744 [limited-purpose resentencing does not require reconsideration of original sentence found to be validly imposed]; People v Quinones, 22 AD3d 218, 219, lv denied 6 NY3d 817 ["resentencing does not place a defendant, for all purposes, in the position of a person being sentenced for the first time"]).
We have considered and rejected defendant's double jeopardy and due process challenges to the imposition of PRS. To the extent defendant is requesting a reduction of his prison sentence as a matter of discretion in the interest of justice, we are without authority to grant that request.
The decision and order of this Court entered herein on May 18, 2010 ( 73 AD3d 541) is hereby recalled and vacated ( see 2011 NY Slip Op 65670[U] [2011] [decided simultaneously herewith]).